On Wednesday, journalists from both The Guardian and the BBC complained that stories from their outlets had disappeared from Google search results within Europe. There is no good reason for this to be happening.

Ah, you might ask, what about that ruling from the Court of Justice of the European Union (CJEU) that Google must remove results if the information is out-of-date and people complain about it? That’s clearly central to this whole affair, but it still doesn’t explain why Google is removing these specific results. The ruling, you see, doesn’t order it to do that.

Here’s the crucial part of that ruling which, remember, only established that Google had to abide by existing EU law (emphasis is mine):

As the data subject may, in the light of his fundamental rights under Articles 7 and 8 of the Charter, request that the information in question no longer be made available to the general public on account of its inclusion in such a list of results, those rights override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in having access to that information upon a search relating to the data subject’s name. However, that would not be the case if it appeared, for particular reasons, such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of its inclusion in the list of results, access to the information in question.

Good call, bad call — but whose call?

Let’s have a quick look at those vanished stories (which are still online, of course, but not findable through Google’s European services, and Google has over 95 percent of the EU search market.) Danny Sullivan over at MarketingLand has a pretty good run-down, and here’s a recap of that with my non-lawyerly take on Google’s justification in delisting them:

3 stories about a Scottish soccer referee who had to quit because he lied about a decision he made — Definitely a public role, and a memorable scandal. Probably shouldn’t come down

A story about a lawyer who was accused of fraud standing for election in the Law Society. The lawyer was subsequently cleared. — A matter of public interest at the time, but the chap was cleared. Tough call, so this is one the courts should decide on, not Google.

An article about French office workers decorating their office windows with Post-It notes — Utterly random, and a prime example for why Google should be making its criteria clear.

An article about a Merrill Lynch chairman at the height of the sub-prime mortgage debacle — Public interest; shouldn’t come down.

A piece about a supermarket employee insulting his bosses on social media — Easy to see why this was taken down, as it’s probably making the guy unemployable. No public interest.

A story about a couple having sex on a train — Again no public interest and probably highly embarrassing to them. The article isn’t linked to in the MarketingLand piece, though, so hard to judge.

If you’re yelling at your screen that I’m in no position to be judging this stuff, then you’re right, but the same applies to Google. And the CJEU was entirely wise to that fact, saying explicitly in its ruling that, if the search operator denies the data subject’s request for de-linking, the subject can then go complain to the courts.

In other words, when faced with a tricky call, Google should be erring on the side of caution and shoving casework in the courts’ direction. Instead, it appears to be granting applications that should in many cases be denied. What methods does it use to judge what should stay up and come down? Heaven knows – I’ve repeatedly asked Google to explain this since it began censoring results a week ago, but have hit a brick wall.

Straw man?

Let’s quickly go over the timeline of this entire “right to remove” fiasco, as it relates to Google. As soon as the ruling came through, the BBC revealed that the company had received de-linking requests from pedophiles and disgraced politicians. Great PR fodder for Google, which strongly opposed the CJEU ruling, but irrelevant because the public interest in keeping those stories in Google’s search results was clear. These were obviously cases that fell under the CJEU’s exception.

At the end of May, Google started formally taking de-linking requests. It began actually de-linking stuff a few weeks later, despite the fact that lawmakers in the various EU member states are still trying to figure out the processes for making the CJEU’s ruling work in practice. And voila: just days later, two of the highest-profile British publications find that stories have come down which pretty clearly shouldn’t have.

If Google is trying to prove that the system is unworkable, then it’s succeeding – only the system it’s apparently operating in isn’t the system the CJEU described. It’s a straw man, a nastified version of the actual legal framework that makes that framework easier to attack. And it’s not just me seeing this possibility; it’s worth reading what Leo Mirani and Paul Bernal have written on the matter.

I’m not a big fan of the CJEU’s ruling, mainly because I’m worried about how national courts will interpret it, and also because I don’t like the idea of censoring the gatekeeper when the information on the other side is legal and allowed to stay online. But I do actually sympathize with the decision to some extent, certainly in terms of the court upholding European law. I also think it’s worth giving the framework described in the judgement a fair chance, before deciding it doesn’t work.

The European perspective

In Europe, as the CJEU pointed out, freedom of speech does not automatically trump the right to privacy and dignity. Article 6 of Data Protection Directive of 1995 clearly states that personal data must be:

… accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that data which are inaccurate or incomplete, having regard to the purposes for which they were collected or for which they are further processed, are erased or rectified.

All the CJEU said was that Google has to abide by that 19-year-old law like everyone else operating in Europe. The same law – which also provides an exception for journalism and artistic expression — states that personal data shouldn’t be held in a way that identifies the subject for longer than necessary. This is one reason why the CJEU struck down Europe’s spy-friendly Data Retention Directive earlier this year, too.

As it happens, those laws are about to receive a major update that will enhance the “right to be forgotten”. Is that such a bad thing? I’m not so sure.

We are now in a very different world to the one that existed before the internet. In that age, there was no real need to have a strict right to be forgotten – people simply forgot what was in last week’s newspaper by nature. If you wanted to research someone, it required effort, going to libraries and poring through microfiche; calling people and asking.

Now, thanks to search engines, you can thoroughly research someone’s history almost by accident. You only wanted to find their email address but darn it, you just learned that they were up on some charges a decade ago (and you don’t see the subsequent article saying they were innocent and cleared). One slip, or malicious move by someone else, can ruin someone’s life when it’s made online.

So do we just shrug our shoulders and accept that, based on the idea that any kind of censorship is always wrong, or do we try and find a way to make very selective censorship work while making sure that genuine scoundrels can’t hide their tracks?

The middle path would clearly be in the interests of, well, everyone. But we will never find it, nor be in any position to judge its viability, if it’s being obscured by misrepresentation. I really hope that’s not what Google’s trying to do, because: a) de-linking serious journalism is not cool nor called for; b) it would be dishonest; and c) it would probably come back to bite the company, as regulators and lawmakers across Europe are already pretty fed up with the company’s track record of trying to override or skirt EU law.

If Google really is acting in good faith, as it claims to be, it should only be de-linking content that is very clearly not in the public interest. It should also only be putting its “results may be missing” notes on pages from which results have been excised, not every page that gives results for a name – a tactic that is neither helpful for those trying to spot and evaluate censorship, nor called for in the CJEU ruling.

In short, it follow the ruling to the letter, so we can all see if that’s a good idea or not.